International Criminal Liability for Incitement and Hate Speech

in Justice Without Borders
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The ictr has found that “incitement to genocide”, as defined in Article 3(c) of the 1948 Genocide Convention, is punishable regardless of whether or not it was successful (see, e.g., Akayesu Trial Judgement, para. 562). International legal instruments on war crimes and crimes against humanity do not contain a similar incitement provision. Consequently, calls for the commission of such crimes will normally have to be considered from the perspective of instigation. For this mode of liability, the icty and ictr require a causal connection between the instigation and the actus reus of the underlying crime (see, e.g., Kvočka et al. Trial Judgement, para. 252; Kajelijeli Trial Judgement, para. 762). The proposed article would aim to address the distinction between incitement and instigation and analyse whether there is a legal basis in international law to conclude that urging the commission of war crimes or crimes against humanity can also be criminal without proof that this conduct led to crimes. The conclusions would be used to address, in particular, some of the factual findings in the Šešelj Trial Judgement.

Justice Without Borders

Essays in Honour of Wolfgang Schombourg

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